Congressional Participation as Amicus Curiae Before the U.S. Supreme Court

Vol. 15 No.10 (October 2005), pp.933-936

CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT, by Judithanne Scourfield McLauchlan. New York: LFB Scholarly Publishing, 2005. 266 pp. Cloth $70.00. ISBN: 1-59332-088-4.

Reviewed by Paul M. Collins, Jr., Department of Political Science, University of Houston. E-Mail: pmcollins [at] uh.edu.

Over the past 40 or so years, a veritable cottage industry has spawned within the field of judicial politics, focused on examining the motivations and effectiveness of amici curiae in the courts. Typically, this research involves analyzing the participation and influence of interest groups, the U.S. Solicitor General, and, to a much lesser extent, state attorneys general. Surprisingly little attention has been dedicated to investigating the amicus participation of members of Congress (but see Heberlig and Spill 2000; Solberg and Heberlig 2004). In CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT, Judithanne Scourfield McLauchlan attempts to fill this void. Combining both qualitative and quantitative methodologies, the author pursues four objectives in the study (p.2): 1) determining how often and which members of Congress participate as amicus curiae; 2) establishing which types of cases attract congressional amici; 3) uncovering the motivations for congressional amicus participation; and 4) analyzing the effectiveness of congressional amici. Taken as a whole, McLauchlan achieves these goals, although establishing the effectiveness of congressional amici constitutes the least compelling part of the book.

In the first chapter, McLauchlan provides readers with a useful history of amicus participation, from its incarnation in Roman law to its current adversarial role in American jurisprudence. Although largely recounting the seminal work of Krislov (1963), this chapter is, nonetheless, important for those unfamiliar with the evolving role of friends of the court, particularly as it establishes the lack of consensus as to whether amicus briefs influence the decision making of U.S. Supreme Court justices, especially those briefs filed by members of Congress. McLauchlan also analyzes the frequency of congressional amicus participation in the Court, uncovering that, relative to other amici, congressional participation is rare, occurring in only seven percent of cases during the 1986-1997 terms.

In Chapter Two, McLauchlan tackles the question of which members of Congress participate as amicus curiae. She finds that congressional amici generally reflect both the partisanship of Congress (53% Democrat, 46% Republican) and the composition of legislature as a whole (83% House, 17% Senate). Further, McLauchlan reveals that members of Congress overwhelmingly participate as amici in coalitions, whether they are coalitions of other congresspersons or interest groups. This latter finding is particularly fascinating, suggesting that the decision to file briefs originates [*934] outside of Congress, when organized interests contact members to do so.

In Chapter Three, the author examines the types of cases in which members of Congress file amicus briefs and devises a typology of congressional participation (p.80). Members of Congress most frequently participate in cases that challenge executive branch execution and interpretation of federal law (21%), involve “hot button” issues (17%), touch on home state concerns (14%), implicate electoral laws (13%), or allow the members to enter into a dialogue with the Court regarding congressional intent in passing legislation (12%). Of course, these categories are not mutually exclusive, and the author correctly notes this. Unfortunately, however, it is not made clear how the decision was made to categorize certain types of cases into one typology over another. For example, it is unclear why RUST v. SULLIVAN (1991), which involved reproductive rights, is categorized as a “hot button” issue and not a case involving a congressional colloquy with the Court; in it, two congressional briefs were filed offering divergent interpretations of congressional intent (p.96). Further, it is nearly impossible to discern how cases were determined to involve “hot button” issues as a whole (salience, after all, is relative concept).

One will find Chapter Four, in which McLauchlan examines congressional motivations for filing amicus briefs, to be the most interesting and well-executed chapter of the book, despite its brevity. Relying primarily on interviews with active and former members of Congress and their staffs, the author illustrates the power of “soaking and poking” in the style of Fenno (1978) and Perry (1991) to effectively uncover underlying motivations that are not easily quantifiable. She begins by establishing that members of Congress do not take the decision to file a brief lightly, and instead treat it similarly to deciding to co-sponsor legislation, as both activities require members to make a public commitment to the development of law within a particular issue area. Following this, McLauchlan examines congressional motivations, developing five typologies (p.146). The most frequent motivation is position taking, in which members file to enhance election prospects. In so doing, they are able to demonstrate support of key issues to both their constituents and interest groups, hoping to be rewarded at election time. The second dominant factor is institutional patriotism, in which members file briefs to defend or enhance congressional powers. Lesser factors include participating in order to promote policies that members were intimately involved in passing, to protect constituent interests, and, less frequently, to enhance their reputations in Congress, including joining colleagues’ briefs as a type of logrolling (note that, members of Congress are explicit that no “vote trading” occurs in which a member joins a colleague’s amicus brief in exchange for a vote on a bill). Interestingly, seeking to influence the Court is rarely discussed as a motivation for filing a brief. The chapter concludes appropriately with a discussion of why some members of Congress choose not to participate, concluding that the primary reasons are that they believe it is inappropriate to do so in a separation of powers system (i.e., to preserve judicial independence) and that they come from marginal districts in which position taking on controversial [*935] issues of public policy is generally avoided unless absolutely necessary.

In Chapter Five, McLauchlan examines whether congressional amicus briefs are effective in influencing the Court. Here she travels down familiar territory, reporting citation counts to congressional briefs in opinions and win/loss ratios with little regard for other factors that influence the justices’ decision making. This analysis constitutes the weakest and least persuasive part of the book. McLauchlan finds that the justices cite congressional briefs in 10% of cases, a relatively low number compared to Kearney’s and Merrill’s (2000) analysis of all amicus briefs, in which citations were found in 28% of cases in which amici participated. With regard win/loss ratios, the author finds that the Court ruled in favor of the position argued by congressional amici (in cases with congressional briefs filed in support of only one side) in only 54% of cases, thus concluding that congressional amici are not very influential. Although McLauchlan does put these figures in perspective with other third-party repeat players, such as the Solicitor General and ACLU, her analysis would benefit from more rigorous consideration of circumstances in which congressional amici are more or less influential. At the end of the chapter, the author moves back to a qualitative methodology to determine effectiveness of congressional amici, relying on interviews with former Supreme Court law clerks. As in the previous chapter, this is particularly compelling and well-executed analysis. Here the author corroborates her argument that congressional briefs are generally non-influential and are often not viewed as credible information sources. For example, one former clerk mused that congressional amicus arguments have little value in highly salient cases. Indeed, “[t]he last place one would look for dispassionate legal advice is from a politician” (p.191). Finally, McLauchlan examines the bench memoranda of Thurgood Marshall to determine how often congressional briefs were cited in law clerks’ memos. Again, she finds little evidence of congressional influence—congressional briefs were cited in only 10% of memos, compared to 26% for other amici.

In the final chapter, McLauchlan reviews her major findings and discusses some of the broader implications of the research, particularly as they relate to legislative-judicial relations in a separation of powers system. In addition, she offers a number of related research questions (see also p.29), such as whether congressional amicus participation has significant implications for judicial independence.

Taken as a whole, the book makes a valuable contribution to the literature on Congress-Court relations, although it does have a number of flaws. Although McLauchlan makes excellent use of qualitative methodology throughout the book (in the form of interviews and case studies), the quantitative analysis is weakened by several deficiencies. First, and most notably, on several occasions the author does not explain how her data were assembled, making it particularly difficult to evaluate her conclusions. For example, McLauchlan does not explain how Figure 4.1 (p.147) was derived, other than to say it “was developed after careful analysis of the data gleaned in the longitudinal study and the interviews with Members of Congress and their [*936] staff” (p.142). For a discipline that stresses the need for reliable and replicable analyses, this and other quantitative sections of the book fall well short of standard practices. Second, there is scant discussion of assorted tables and figures and what they tell us. For example, two tables and two figures are presented with little accompanying discussion (pp.39-41). Third, in analyzing the effectiveness of congressional amici, McLauchlan “hypothesizes” several relationships. Yet, these “hypotheses” are seriously under-developed. For example, she offers at least nine hypotheses on a single page (p.166), devoting little attention to their development or to the theoretical reasons for the expected relationships. Finally, the author misses two important works on congressional amicus participation by Solberg and Heberlig, that could have strengthened her analysis, particularly in developing and testing of hypotheses related to motives for filing briefs and their ultimate influence on the Court (Heberlig and Spill 2000; Solberg and Heberlig 2004).

Despite these concerns, CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT makes an important contribution to our understanding of Congress-Court relations, particularly through its use of in-depth interviews with current and former members of Congress, their staffs, and Supreme Court law clerks. In addition, the book offers a treasure trove of new research questions, making it worthwhile reading for scholars interested in legislative-judicial relations, interest group participation in the courts, and congressional politics more broadly.

REFERENCES:

Fenno, Richard F. 1978. HOME STYLE: HOUSE MEMBERS IN THEIR DISTRICTS. Boston: Little, Brown and Company.

Heberlig, Eric, and Rorie Spill. 2000. “Congress at the Court: Members of Congress as Amici Curiae.” 28 SOUTHEASTERN POLITICAL REVIEW 189-212.

Kearney, Joseph D., and Thomas W. Merrill. 2000. “The Influence of Amicus Curiae Briefs on the Supreme Court.” 148 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 743-855.

Krislov, Samuel. 1963. “The Amicus Curiae Brief: From Friendship to Advocacy.” 72 YALE LAW JOURNAL 694-721.

Perry, H.W. Jr. 1991. DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT. Cambridge: Harvard University Press.

Solberg, Rorie L. Spill, and Eric S. Heberlig. 2004. “Communicating to the Courts and Beyond: Why Members of Congress Participate as Amicus Curiae.” 29 LEGISLATIVE STUDIES QUARTERLY 591-610.

CASE REFERENCES:

RUST v. SULLIVAN, 500 U.S. 173 (1990).

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